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04/03/2017

Date

As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA). The agency should identify all similarly situated current and, to the extent possible, former employees, ensure that they are treated in a manner consistent with this decision, and inform them in writing of their right to file an FLSA claim with the agency or OPM. There is no further right of administrative appeal. This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710). The claimant has the right to bring action in the appropriate Federal court if dissatisfied with this decision.

The agency is to review whether the claimant has worked overtime in accordance with instructions in the “Decision” section of this decision, and if the claimant is determined to be entitled to back pay, the agency must pay the claimant the amount owed him plus interest as provided in 5 CFR 550.806. If the claimant believes the agency has incorrectly computed the amount owed him, he may file a new FLSA claim with this office.

Introduction

On May 9, 2012, the U.S. Office of Personnel Management (OPM) received a letter dated May 9, 2012, from the Law Offices of Bernstein & Lipsett, P.C. (B & L), the claimant’s duly appointed representative, concerning a Fair Labor Standards Act (FLSA) claim they had initially filed on the claimant's behalf with the General Accounting Office (GAO), now the U.S. Government Accountability Office, on April 27, 1990, and subsequently with OPM by letter dated September 9, 1999, challenging his exemption status under the FLSA when he was employed as a Criminal Investigator, GS-1811-13, with the Bureau of Alcohol, Tobacco, and Firearms (BATF). The claimant was a plaintiff in a lawsuit filed in the U.S. Court of Federal Claims at approximately the same time the administrative claim was filed with GAO. Based on information provided by B & L, the claimant was awarded back pay under a settlement agreement for the pay period ending May 7, 1988, to the pay period ending October 29, 1994, subject to the two-year statute of limitations for FLSA claims under 29 United States Code (U.S.C.) 255(a).

B & L has requested OPM adjudicate the administrative claim filed with OPM and asserts that, because the claimant served in the military during the Gulf War, the statute of limitations applicable to this claim is the five-year statute of limitations under 31 U.S.C. 3702(b)(2) rather than the two-year statute of limitations (three years for willful violations) applicable to FLSA administrative claims filed under the Barring Act. See 73 Comp. Gen 157 (May 23, 1994); 31 U.S.C. 3702(b); 29 U.S.C. 255(a). B & L states the claimant was called to active duty with the United States Army Reserve “from approximately September 4, 1990 to October 18, 1990” in connection with Operation Desert Shield/Storm and, citing the provisions of 31 U.S.C. 3702(b)(2), asserts: “[H]e is entitled to retroactive back pay and interest … for the period he was employed prior to the commencement of the Gulf War on August 2, 1990, up to the date he recovered under previous FLSA settlements. This period includes August 2, 1985 to April 23, 1988, less Mr. Stabile’s active duty military service time, for which he does not seek recovery.”

Background

We previously accepted and decided six similar claims under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, U.S.C., which we denied as time barred. Subsequently, the claimant’s representative brought suit under the Administrative Procedure Act (5 U.S.C. 551 et seq., and 701 et seq.) in the United States District Court for the District of Columbia, alleging that OPM wrongfully applied a two-year statute of limitations in denying their administrative claims for unpaid FLSA overtime pay. Armstrong v. Archuleta, 77 F.Supp.3d 9 (December 30, 2014). In relevant part, the court stated in its opinion:

All Plaintiffs are deemed to have timely filed their claims as of the date of their filings with the Claims Court. As a result, Plaintiffs . . . can recover for the entire claim period under the five-year statute of limitations—that is, for all claims that accrued within five years before the Gulf War commenced on August 2, 1990—minus monies paid under their DOJ Settlements.

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[T]he case is remanded to OPM to adjudicate and process damages in accordance with FLSA and other applicable laws, and Plaintiffs’ respective employing agencies are directed to compensate them in accordance with OPM’s determinations.

Consistent with the holding in the Armstrong case, we will apply the five-year statute of limitations and corrective methodology (subtracting monies already received under prior settlements or judgments) to the claims of similarly-situated claimants we find to be FLSA non-exempt and potentially due FLSA overtime pay.

Analysis

Under the provisions of 5 CFR 551.706, OPM determines the facts necessary to adjudicate a claim. Applying the court’s mandate to determine whether the claimant is owed overtime pay under the FLSA, we must first determine whether the work performed during the claim period is exempt or nonexempt from the overtime pay provisions of the FLSA. On September 29, 2015, in response to the aforementioned court decision, OPM requested an agency administrative report (AAR) from BATF regarding this FLSA claim. By letter dated October 25, 2016, BATF advised OPM based on their fact-finding that the claimant was employed by them from August 2, 1985, to April 23, 1988, and provided the following rationale as to the claimant’s proper FLSA exemption status:

During this grade/time, Mr. Stabile was a GS-1811 criminal investigator, and would also have been called a “Special Agent.” He would have performed the traditional duties of a criminal investigator, including conducting witness/subject interviews, executing search/seizure warrants, making arrests, requesting/reviewing records, and writing reports. At these grades [sic], he would not have had any administrative or managerial responsibilities within the meaning of the FLSA.

BATF also provided the following history of the claimant’s FLSA exemption status during the claim period:

Mr. Stabile was employed as an 1811 special agent at the GS-13 level during the claimed period covering 08/02/1985 through 04/23/1988 and the position was classified as FLSAExempt during this period based upon the administrative exemption. The ruling in the Adams [case] held that the ATF GS-13 level criminal investigator position did meet the administrative test found in 5 CFR § 551.205 for exemption from FLSA and was properly designated as FLSA exempt. Nevertheless, ATF issued payments to the Special Agents for their periods of employment at the GS-12 and GS-13 levels pursuant to two separate settlement agreements issued between 2004 and 2006.

Based on careful review of the record, we concur with the agency’s determination that the claimant was properly designated as FLSA nonexempt during his employment at BATF.[1] The claimant is requesting compensation for work performed from August 2, 1985, to April 23, 1988, less his active duty military service time.[2] Therefore, BATF would have been required to compensate the claimant under the overtime pay provisions of Subpart E of Part 551 of 5 CFR for work performed within the claim period; i.e., within five years before the commencement of the Gulf War on August 2, 1990, and subject to deduction for any monies paid under the claimant’s DOJ settlement agreements. In this case, the entire claim period (August 2, 1985, to April 23, 1988) is covered.

Decision

The claimant’s work was FLSA nonexempt (i.e., covered by FLSA overtime provisions), and he is entitled to compensation for all overtime hours worked at the FLSA overtime rate for the period of the claim; i.e., from August 2, 1985, to April 23, 1988, less his active duty military service time. Since his previous FLSA settlement was for a time period subsequent to April 23, 1988, it is not germane to the overtime pay calculations for the period of the claim covered by this decision. The agency must follow the compliance requirements on page ii of this decision.

The claimant must submit evidence showing the amount and extent of overtime he performed as provided for in 5 CFR 551.706(a). The agency will have the opportunity to review this evidence using any other sources of information available, including witnesses, before a determination is made as to the amount of back pay and interest due as required under 5 CFR part 550, subpart H,[3] in accordance with the compliance requirements on page ii of this decision. Any petition for attorney’s fees and expenses must be submitted to the agency out of which this claim arose. Should the claimant be determined to be entitled to back pay which the claimant believes to be incorrectly computed, the claimant may file a new FLSA claim with this office.

[1] The court’s view of the work performed during the period of the claim subject to judicial review is not binding on the earlier period of the claim at issue in this administrative decision which is based on the most recent facts available on the case.

[2] The claim states the claimant “was not issued a DD Form 214 for his 45 days of active duty service in 1990” but that his “U.S. Army Reserve Personnel Command Chronological Statement of Retirement Points (ARPC Form 249-2-E) … shows he served 45 days of active duty in 1990….” However, this form also shows he served varying numbers of active duty days for the years 1985-1988 during the claim period. The agency must obtain documentation of the specific dates of this active duty service and subtract them from the claim period as appropriate.